Citation Nr: 0920444
Decision Date: 06/02/09 Archive Date: 06/09/09
DOCKET NO. 05-24 875 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for gastritis, to
include H. pylori.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for tinnitus.
4. Entitlement to service connection for low back
disability, described as lumbar strain.
5. Entitlement to an initial compensable disability rating
for acid reflux disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The Veteran served on active duty from July 1978 to September
2004.
This appeal comes before the Board of Veterans' Appeals
(Board) from an October 2004 rating decision by the St.
Louis, Missouri Regional Office (RO) of the United States
Department of Veterans Affairs (VA). In that decision, the
RO denied service connection for gastritis to include H.
pylori, for bilateral hearing loss, for tinnitus, and for
lumbar strain. The RO granted service connection for acid
reflux disease, and assigned a 0 percent, noncompensable
disability rating. The Veteran has since relocated, and his
case is handled through the Montgomery, Alabama RO.
The issues of service connection for bilateral hearing loss
and tinnitus are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In March 2009, prior to promulgation of a decision in the
appeal for service connection for gastritis to include H.
pylori, the Veteran communicated that he wished to withdraw
his appeal as to that issue.
2. Low back disability, manifested by recurrent and chronic
low back pain, began during service and continued after
separation from service.
3. From October 1, 2004, acid reflux disease has been
manifested by abdominal and chest discomfort, regurgitation,
and difficulty swallowing, but does not considerably impair
health.
CONCLUSIONS OF LAW
1. With respect to the appeal for service connection for
gastritis to include H. pylori, the criteria for withdrawal
of a substantive appeal by the appellant have been met.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202,
20.204(b) (2008).
2. Low back disability was incurred in service. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2008).
3. From October 1, 2004, acid reflux disease meets the
criteria for a 10 percent disability rating. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including
§§ 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Gastritis
In March 2009, the Veteran had a Travel Board hearing at the
RO before the undersigned Veterans Law Judge. In the
hearing, the Veteran stated that he wished to withdraw his
appeal for service connection for gastritis to include H.
pylori. The transcript of the hearing is associated with the
Veteran's claims file.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
that fails to allege specific error of fact or law in the
determination being appealed. A substantive appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. §§ 20.202, 20.204(b).
The Board finds that the Veteran's statement at the hearing
satisfies the requirements for withdrawing the appeal for
service connection for gastritis to include H. pylori. Thus,
there is no remaining allegation of error of fact or law for
appellate consideration, and that appeal is withdrawn.
Accordingly, the Board does not have jurisdiction to review
the appeal, and it is dismissed.
Low Back Disability
The Veteran contends that he has chronic low back pain that
began during service and has continued after service.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In
order to establish service connection for a claimed disorder,
there must be (1) medical evidence of current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247 (1999).
Service connection may be granted for a disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a claim,
VA shall give the benefit of the doubt to the claimant.
38 U.S.C.A. § 5107.
The Veteran's service treatment records show treatment for
low back pain. In April 1987, the Veteran sought treatment
for spasms in the middle of his back. He related a six month
history of recurring back spasms. The examiner noted
tenderness and spasm inferior to the right scapula. The
examiner's assessment was myalgia. In a February 2001
medical history, the Veteran reported a history of low back
pain with exercise, if he did not stretch before and after
the exercise. In June 2003, the Veteran was seen for a two
week history of back pain. The examiner's assessment was low
back strain. He was seen again in November 2003 for low back
pain. In a medical history report completed in March 2004,
the Veteran reported chronic low back pain that started in
2000 and continued to through the present. He was referred
for physical therapy. In physical therapy, later in March
2004, he reported a three year history of low back pain. He
indicated that the onset of the pain had been gradual, and
that the pain had slowly increased over time.
In May 2004, the Veteran had a pre-discharge VA medical
examination. He reported a gradual onset of low back pain,
radiating a little into the right hip. He indicated that the
pain increased with activity. On examination, the
thoracolumbar spine had full ranges of motion, with pain with
extension and rotation to the left. There was no tenderness
to palpation. The lumbosacral spine appeared normal on x-
rays and on MRI. The examiner's impression was lumbar
strain.
In VA outpatient treatment, the Veteran reported in January
2006 that he had occasional low back pain. In April 2007,
the Veteran reported chronic low back pain. Lumbosacral x-
rays showed mild lumbar instability, minimal lumbar
spondylosis at L3-L4 with small marginal spurs, mild
degenerative facet joints from L4 to S1, and mild bilateral
sacroiliitis. The treating practitioner's diagnosis was
degenerative disc disease of the lumbar spine. In 2007 and
2008, the practitioner prescribed medication for pain in the
low back and knees.
In the March 2009 hearing, the Veteran reported that during
service low back pain developed gradually over time. He
stated that the pain had continued since service. He
indicated that he received treatment for the low back during
service, and since service at a VA facility.
During service, the Veteran reported low back pain over
several years. The pre-discharge VA examination showed
lumbar strain. The Veteran's low back symptoms have
continued since service, and he receives VA treatment for low
back pain. The evidence supports a conclusion that the
current low back disability began in service. Therefore,
service connection is granted.
Acid Reflux Disease
The Veteran received treatment during service for acid reflux
disease or gastrointestinal reflux disease (GERD). He
claimed, and the RO granted, service connection for that
disorder, described as acid reflux disease. He appealed the
initial 0 percent, noncompensable disability rating that the
RO assigned for that disease.
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities.
38 C.F.R. Part 4. An evaluation of the level of disability
present also includes consideration of the veteran's ability
to engage in ordinary activities, including employment, and
the effect of symptoms on the functional abilities.
38 C.F.R. § 4.10. Where there is a question as to which of
two ratings shall be applied, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7.
In determining the current level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records.
38 C.F.R. § 4.2. At the time of the assignment of an initial
rating for a disability following an initial award of service
connection for that disability, separate ratings can be
assigned for separate periods of time based on the facts
found, a practice known as "staged" ratings. Fenderson v.
West, 12 Vet. App. 119, 126 (1999). As the Veteran appealed
the initial disability rating that the RO assigned for his
acid reflux disease, the Board will consider the evidence for
the entire period since October 1, 2004, the effective date
of the grant of service connection, and will consider whether
staged ratings are warranted.
The RO evaluated the Veteran's acid reflux disease under
38 C.F.R. § 4.114, Diagnostic Code 7346, for hiatal hernia.
That diagnostic code provides the following criteria:
Symptoms of pain, vomiting, material
weight loss and hematemesis or melena
with moderate anemia; or other symptom
combinations productive of severe
impairment of health ...........................................
60 percent
Persistently recurrent epigastric
distress with dysphagia, pyrosis, and
regurgitation, accompanied by substernal
or arm or shoulder pain, productive of
considerable impairment of health
..................................... 30
percent
With two or more of the symptoms for the
30 percent evaluation of less severity
............................. 10 percent
During service, the Veteran was seen in February and March
1998 for nagging chest pain after eating. Treating
practitioners found that the Veteran's chest pain was
consistent with GERD. Treatment records from March 2000 show
a diagnosis of GERD. In April 2001, the Veteran reported a
one year history of chronic heartburn, with regurgitation.
Barium swallow upper gastrointestinal (UGI) x-rays showed
moderately severe gastrointestinal reflux. Treatment notes
from 2002 and 2003 show reports of abdominal discomfort after
eating.
In January 2004, the Veteran reported continued intermittent
epigastric pain. In February 2004, he stated that he had
persistent reflux symptoms. In a March 2004 medical history,
he indicated that he had chest pain due to frequent
indigestion. In the May 2004 pre-discharge VA examination,
the Veteran reported having midsternal burning, with reflux,
about once a week. He indicated that his was on medication
for reflux. He stated that his weight remained stable.
After service, records of VA outpatient treatment in 2005 to
2008 of the Veteran show ongoing diagnosis of and treatment
for reflux, including hiatal hernia and GERD. In January
2005, UGI x-rays using barium showed a sliding hiatal hernia.
In a July 2008 statement, the Veteran wrote that medications
for GERD reduced his symptoms, but that he continued to have
periodic recurrence of severe heartburn, difficulty
swallowing, and regurgitation. In his March 2009 hearing,
the Veteran reported having regurgitation one to two times
per day, pain in the chest and left side, and sometimes
difficulty swallowing.
The Veteran's statements and medical records show acid reflux
disease symptoms of abdominal and chest discomfort,
regurgitation, and difficulty swallowing. As his acid reflux
disease produces three of the symptoms listed in Diagnostic
Code 7346, the disease warrants a 10 percent rating under
that code. He has had that level of symptomatology since
before separation from service. Therefore, the 10 percent
rating is warranted for the entire period since service
connection became effective. His acid reflux disease has not
been shown to produce weight loss or other signs of
considerable impairment of health; so the disease does not
warrant a 30 percent rating.
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits, and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. In the notice, VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide VA and which information and evidence, if any, that
VA will attempt to obtain on behalf of the claimant. See 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi,
16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006). The notice should also address the rating
criteria or effective date provisions that are pertinent to
the appellant's claim. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
As the appeal for service connection for gastritis to include
H. pylori is dismissed, it is not necessary to discuss VA's
duties to notify and assist the Veteran with respect to that
claim.
With regard to the Veteran's claim for service connection for
a low back disability, the Board is granting the benefit
sought on appeal. Therefore, it is not necessary to discuss
VA's duties to notify or assist the Veteran in substantiating
that claim.
With regard to the Veteran's appeal for a higher initial
rating for acid reflux disease, the RO provided notice by
letters dated in February 2005, March 2006, and June 2008.
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required, because the
purpose that the notice is intended to serve has been
fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). The appellant bears the
burden of demonstrating any prejudice from any defect in
notice with respect to the downstream elements. Goodwin v.
Peake, 22 Vet. App. 128 (2008). That burden has not been met
in this case.
The record reflects that the Veteran was provided a
meaningful opportunity to participate effectively in the
processing of the acid reflux disease claim. He was notified
that service connected was granted effective October 1, 2004,
immediately following separation from service, and that a 0
percent rating was assigned. He was provided notice how to
appeal that decision, and he did so. He was provided a
statement of the case that advised him of the applicable law
and criteria required for a higher rating. He demonstrated
his actual knowledge of what was required to substantiate a
higher rating in his written arguments and hearing testimony.
Moreover, the record shows that the Veteran was represented
by a Veteran's Service Organization and its counsel
throughout the adjudication of the claims. Overton v.
Nicholson, 20 Vet. App. 427 (2006).
VA has obtained service medical records, assisted the Veteran
in obtaining evidence, afforded the Veteran physical
examinations, obtained medical opinions as to the etiology
and severity of the acid reflux disease, and afforded the
Veteran the opportunity to give testimony before the Board.
All known and available records relevant to the acid reflux
disease claim have been obtained and associated with the
Veteran's claims file; and the Veteran has not contended
otherwise.
VA has substantially complied with the notice and assistance
requirements; and the Veteran is not prejudiced by a decision
on the claims that the Board is addressing at this time.
ORDER
The appeal for service connection for gastritis to include H.
pylori is dismissed.
Entitlement to service connection for low back disability is
granted.
From October 1, 2004, a 10 percent disability rating for acid
reflux disease is granted, subject to the laws and
regulations controlling the disbursement of monetary
benefits.
REMAND
The Veteran is seeking service connection for bilateral
hearing loss and tinnitus. He had a VA medical examination
in May 2004, before his separation from service. The
examination was to include an audiological examination, with
audiometric testing. The examination records contain a
notation that the Veteran did not report for the audiological
examination. In the March 2009 hearing, the Veteran stated
that he was not informed that the May 2004 audiological
examination was scheduled. The Board remands the hearing
loss and tinnitus claims for a VA audiological examination,
to test the Veteran's hearing and obtain his history
regarding noise exposure, hearing loss, and tinnitus. In the
2009 hearing, the Veteran also reported that in 2005 he had a
medical examination for civil service employment, and that
that examination showed hearing loss. The Veteran indicated
that he had a copy of the examination report. On remand, the
RO should ask the Veteran to submit a copy of the examination
report, or to identify the source of the examination, and
permit the RO to obtain a copy of the report.
Accordingly, the case is REMANDED for the following action:
1. The RO should ask the Veteran to
provide a copy of the report of the 2005
medical examination for civil service
examination that included audiological
testing. If the Veteran needs assistance
in obtaining the report, he may identify
the provider who performed the
examination, and give the RO permission to
obtain a copy of the examination report,
and the RO should obtain the report.
2. The RO should schedule the Veteran for
a VA audiological examination to determine
the current nature and likely etiology of
hearing loss and tinnitus. The claims
folder should be made available to the
examiner for review. The examiner should
record the history of noise exposure,
hearing impairment, and tinnitus, and to
conduct audiometric testing to document
the extent of any current hearing
impairment. Based on the examination and
review of the record, the examiner should
offer an opinion as to whether it is at
least as likely as not that any currently
diagnosed hearing loss and/or tinnitus is
related to service.
Complete rationale for any opinion should
be provided.
3. After completion of the above, the RO
should review the expanded record and
determine if the Veteran's hearing loss
and tinnitus claims can be granted. If
either claim remains denied, the RO should
issue a supplemental statement of the case
and afford the Veteran an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The Board intimates no opinion as to the ultimate outcome of
this case. The Veteran has the right to submit additional
evidence and argument on the matters that the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs